Is the White House Serious About Slapping Down Rogue Judges or Is This Just Failure Theater

Detail from "The Bench" by William Hogarth (1758) judge, judges, court, courts

Yesterday, a federal judge in California issued a temporary nationwide injunction against a final rule published by the Department of Justice last week. That rule (see Trump Makes Major Change To Asylum Rules) required all asylum seekers to seek asylum in at least one country they had passed through on the way to the US and they must have been denied asylum there.


This is only logical and is certainly in line with US immigration law and it is a requirement of the international conventions on asylum. Even though a federal judge in DC tossed on challenge to the new rules yesterday, another judge in San Francisco issued an injunction. The judge, Obama appointee Jon Tigar, has been the Trump administration’s bête noire. He ruled against an order by Trump that said asylum applications would only be accepted at established ports of entry, this effectively made asylum claims impossible for illegals and we can’t have that, can we? And then became famous when President Trump called him an “Obama judge” and Chief Justice John Roberts and Lido Deck conservatives had a cow over the insinuation that judges picked by Obama might want to protect his political legacy of lax enforcement of immigration laws.

The White House was obviously displeased and took the step of calling out the judge’s ruling as the legal equivalent of #FakeNews.

Yesterday evening, a single district judge in California, based on a complaint filed by a few activist groups with no legal standing, issued a nationwide injunction against a lawful and necessary rule that discourages abuse of our asylum system – and did so despite a ruling from another Federal judge earlier in the day rejecting the same request by other plaintiffs and suggesting that the Government was likely to prevail against challenges to the rule. Congress authorized the Department of Justice and Department of Homeland Security to establish categorical limitations on eligibility for asylum, and this rule properly used that authority to encourage migrants to seek asylum in other countries they have traveled through before reaching the United States. The tyranny of a dysfunctional system that permits plaintiffs to forum shop in order to find a single district judge who will purport to dictate immigration policy to the entire Nation – even in the face of a contrary ruling by another Federal court – must come to an end. We intend to pursue all available options to address this meritless ruling and to defend this Nation’s borders.


This is the second time the White House has issued such a statement. The first time was on July 2 after another Ninth Circuit tyrant, this one in Seattle, ruled that illegals had to be granted bail rather than held in detention until their hearing.

Yesterday, a single, unelected district judge in Seattle issued an injunction that prevents the government from ensuring the detention of those aliens who cross the border unlawfully until the completion of their immigration court proceedings. The decision ignores an express statutory prohibition on granting class-wide injunctive relief against enforcement of the immigration laws and also holds unconstitutional a statute passed by bipartisan majorities in Congress during the Clinton administration that specifically prohibits the release of certain immigrants on bond.

The district court’s injunction is at war with the rule of law. The decision only incentivizes smugglers and traffickers, which will lead to the further overwhelming of our immigration system by illegal aliens. No single district judge has legitimate authority to impose his or her open borders views on the country. We must restore our democracy and ensure Americans have the voice to which they are entitled under our Constitution.

This is beginning to look eerily reminiscent of the Failure Theater made famous by Mitch McConnell.


The White House, I think, is trying to ratchet up the pressure on Circuit Courts and the Supreme Court to clamp down on the practice of single federal judges, often far removed from the scene, being selected by court-shopping activists issuing injunctions that have a nationwide effect. And these judges are shopped for, make no mistake about it. Based on the same facts as those before Tigar, another federal judge tossed the case for lack of standing by the plaintiffs. But it walks a delicate line. If it takes the best course of action, which is telling the judge to FOAD while the case makes its way to the Supreme Court, the administration hands the Democrats an issue they can actually benefit from…because right now all they have is being in favor of socialism, high taxes, open borders and sexual perversion.

On the other hand, even its supporters on immigration are getting tired of what is starting to look like Failure Theater. Failure Theater has a distinguished history in the GOP, this is from the birth of the term.

Failure Theater is the process by which the Establishment deliberately fails to do achieve anything, but wants credit from the Dumb Conservatives they’re playing to for allegedly “trying.”

Each of Boehner’s and McConnell’s “defeats” are in fact planned in advance. They are not trying to advance the conservative agenda; they are attempting to con conservatives into believing they have attempted to implement conservative policy, when in fact they were delivering their political deliverables to their Donor Class paymasters all along.

Uneducated, gullible, and easily led: if we stand for this, we are exactly what the Washington Post slurred us as 30 years ago.


And we have covered Failure Theater in all its permutations here at RedState.

President Trump and Attorney General Barr needs to take some action to show that they are willing to do more than issue statements. They have identified the problem correctly. So what? A lot of us did that years ago. But if you aren’t going to fight it, you need to shut up and stop whining about it.

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